Judgments of the Supreme Court

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2013 (A) 1729

Date of the judgment (decision)

2015.02.03

Case Number

2013 (A) 1729

Reporter

Keishu Vol. 69, No. 1

Title

Decision concerning a case wherein the court maintained the judgment in prior instance by which the court of prior instance quashed the death sentence handed down by the court of first instance and sentenced the accused to life imprisonment with required labor on the grounds that the sentence determined by the court of first instance through the proceedings with the participation of saiban-in (lay judges) was inappropriate

Case name

Case charged for breaking into residences, attempt of rape at the scene of robbery, robberies causing injuries, rape at the scene of robbery, confinement, thefts, attempt of theft, homicide on the occasion of robbery, breaking into a building, arson of an inhabited building, and damage to a corpse

Result

Decision of the Second Petty Bench, dismissed

Court of the Prior Instance

Tokyo High Court, Judgment of October 8, 2013

Summary of the judgment (decision)

In the case in which the accused who killed a woman was charged for crimes including breaking into a residence, homicide on the occasion of robbery, breaking into a building, arson of an inhabited building, and damage to a corpse, and the cases in which he was also charged for crimes including robbery causing injuries and rape at the scene of robbery that he committed repeatedly during the period of about two weeks before and after the first-mentioned case, the court of prior instance quashed the death sentence handed down by the court of first instance and sentenced the accused to life imprisonment with required labor, it is considered that the court of prior instance determined that the sentence determined by the court of first instance through the proceedings with the participation of saiban-in (lay judges) was unreasonable, in that the court of first instance placed emphasis on such factors as the malicious and dangerous nature of the cases other than said case of the killing of the woman, the accused's criminal record and his antisocial personality tendency, despite the fact that the accused cannot be found to have premeditated the killing of said woman and that there is a limit to putting weight on the maliciousness of the manner of killing, and concluded that it was difficult to find any concrete or persuasive grounds for sentencing the accused to the death penalty; consequently, the sentence chosen by the court of prior instance cannot be found to be unjust to the extent that it would amount to an extreme injustice if it were not quashed.

(There is a concurring opinion.)

References

Article 381, Article 397, paragraph (1), and Article 411, item (ii) of the Code of Criminal Procedure



Code of Criminal Procedure

Article 381

When an appeal to the court of second instance has been made on the grounds that a sentence is unreasonable, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that the sentence is unreasonable shall be cited in the statement of the reasons for appeal.

Article 397

(1) When there are grounds as in the items set forth in the provisions of Article 377 through Article 382 and Article 383, the court shall, on a judgment, reverse the judgment made by the court of first instance.

Article 411

Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:

(ii) The degree of punishment is seriously unfair;

Main text of the judgment (decision)

The final appeals are dismissed.

Reasons

Among the reasons for final appeal argued by the public prosecutors, the reason alleging violation of a judicial precedent in terms of the trial proceedings in the court of second instance is irrelevant in this case because the cited judicial precedent addresses a different type of case, and the rest, including the reason alleging another judicial precedent, are in effect assertions of inappropriate sentencing; the reasons for final appeal argued by the defense counsel, ENDO Naoya and MURAI Hiroaki, including the reason alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations or errors in fact finding; and none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.

In light of the arguments made by the public prosecutors, we make a determination by this court's own authority with regard to the sentencing in the present case.

I. Outline of the case

1. The summary of the facts of the crimes charged in this case, all of which are found as the crimes that the accused committed independently, is as follows.

(1) (A) During the period from the night on October 20, 2009, to the dawn on the next day, the accused broke into the residence of a woman aged 21 in the apartment building located in Matsudo City, Chiba Prefecture, and for the purpose of robbing her of money or goods, the accused held a knife, which he found in that room, on her, assaulted and intimidated her by tying her up, and thus suppressed her resistance and robbed her of money and goods, and with the intent to kill, the accused stabbed her with that knife three times in the left breast, thereby causing her to die of hemorrhagic shock due to the wound on the left breast. (B) On October 21, 2009, the accused attempted three times to steal cash using the cash card, etc. taken by robbery, accomplishing one attempt while failing in the other two. (C) On October 22, the accused thought of setting fire to the abovementioned apartment building where 15 persons resided and burning out the body of the woman mentioned in (A) and thereby concealing the traces of the homicide on the occasion of robbery, and with such intent, the accused broke into the abovementioned room, set clothes, etc. placed near the body on fire with a lighter, thereby causing damage by fire to the inside of said room in said condominium and also damaging said woman's body by fire (hereinafter these facts are collectively referred to as the "Matsudo Case").

(2) Within a period of about two weeks before and after the Matsudo Case, the accused committed the following crimes: (A) three cases of breaking into private residences and committing thefts; (B) a case of robbery causing an injury by breaking into a private residence and causing a woman aged 76 to suffer an injury requiring about three weeks to heal and leaving aftereffects; (C) a case of robbery causing an injury by breaking into a private residence and causing a woman aged 61 to suffer an injury requiring about eight weeks to heal and leaving aftereffects, a case of rape at the scene of robbery by causing a woman aged 31, who came home, to suffer an injury requiring about two weeks to heal, confinement, and theft on cash by using a cash card, etc. that he had taken by robbery; (D) a case of robbery causing an injury by causing a woman aged 22 to suffer an injury requiring about two weeks to heal; and (E) a case of an attempt of rape at the scene of robbery on a woman aged 30 by breaking into a private residence.

2. Summary of the reasons why the court of first instance chose the death penalty

The court of first sentence which dealt with the case as a panel with the participation of saiban-in (lay judges) sentenced the accused to the death penalty for the reasons as summarized below.

(A) The Matsudo Case was committed with an extremely firm intent to kill and the manner of killing was relentless, cruel and merciless. The arson that was also committed in this case was a malicious crime with a high risk of burning down other buildings and its consequences were serious. (B) The cases committed by the accused other than the Matsudo Case were also serious and malicious, and in particular, the cases mentioned in 1(2)(B) to (E) above could have caused serious damage to the victims' lives and bodies, and the damage that the victims actually suffered were of a serious nature. (C) Despite his previous convictions for repeated crimes or similar crimes, the accused committed the abovementioned crimes only less than three months after serving out his last prison term and being released. Such conduct of the accused deserves a strong accusation, and in light of the fact that the accused repeatedly committed the series of crimes within a short period of time, his antisocial personality tendency is outstanding and deeply rooted. (D) In the Matsudo Case, the number of victims killed was one and the accused cannot be found to have premeditated the killing itself, but taking these points into consideration in combination with other circumstances, such as the accused having committed a serious case more than once within a short period of time, and also taking into consideration the possibility that, in light of the accused's personality tendency, all these cases could have had the risk of causing serious damage to the victims' lives and bodies depending on the victims' reaction, said points concerning the Matsudo Case cannot be regarded as decisive factors for avoiding the death penalty. (E) Since the accused cannot be found to deeply reflect on what he did, it must be said that he has little potential for rehabilitation, and the victims have extremely strong feelings for him to be severely punished. In view of all these circumstances, the accused bears an extremely heavy criminal responsibility, and it is appropriate to punish him by death.

3. Summary of the reasons why the court of prior instance quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor

The court of prior instance quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor for the reasons as summarized below.

The death penalty is the ultimate, severest punishment, and needless to say, this punishment should be applied with utmost care. Examining the factors to consider when choosing the death penalty, which had been indicated in the judicial precedent, 1981 (A) No. 1505, judgment of the Second Petty Bench of the Supreme Court of July 8, 1983, Keishu Vol. 37, No. 6, at 609 (hereinafter referred to as the "1983 Judgment"), the accused's act of killing the victim woman in the Matsudo Case cannot in any meaning be regarded as a premeditated killing. In the cases other than the Matsudo Case, the accused did not commit the crimes for the purpose of satisfying his love of gain or achieving other purposes by taking the life of a person, and hence, no matter how much emphasis were placed on the serious and malicious circumstances of the crimes and the dangerous nature of the criminal acts, the death penalty would be the last choice among the statutory penalties provided for the respective crimes. Even looking at the accused's criminal record, he did not have the intent to kill in the previous cases, and unlike the Matsudo Case, he did not go so far as to try to take the life of a person. Thus, no special reason for choosing the death penalty can be found from the circumstances mentioned in 2 (B) and (C). With regard to cases of homicide on the occasion of robbery in which the number of victims killed was one, there is a precedent tendency of avoiding the death penalty if the act of killing was not premeditated. When such precedent tendency exists, if any determination that is inconsistent with that tendency is to be made, a reasonable and persuasive reason is required to be presented, from the perspective that the death penalty should be imposed with utmost care. However, if the court reasoned that it could choose the death penalty instead of following a determination that is consistent with said tendency due to the existence of the circumstances mentioned in 2 (B) and (C) above, it is difficult to say that the court has presented a reasonable and persuasive reason for such choice. Even by taking into consideration the fact that the circumstances of the crimes of robbery causing injuries, rape at the scene of robbery, etc. committed before and after the time of the commission of the Matsudo Case were serious, malicious and dangerous, and further fully taking into account the general circumstances concerning the accused, the death penalty cannot be found to be truly an inevitable choice in the present case, and hence, the court of first instance erred in choosing the death penalty instead of life imprisonment with require labor, which are different in nature.

II. This court's determination

1. The Matsudo Case is at the core of the process of determining the sentence of the accused, and in this case, the accused killed the victim woman by stabbing her on the breast with a knife twice almost in row, damaging her neck with the knife twice and stabbing her on the breast once again immediately before or after she died. Thus, the manner of killing was relentless, cruel and merciless, and the accused committed this with a firm intent to kill. This case was also dangerous and malicious in that the accused started a fire in the victim woman's residence in the apartment building in an attempt to damage her body by fire and conceal the traces of the crime. The cases other than the Matsudo Case were also serious and malicious, and in particular, the cases mentioned in 1(2)(B) to (E) above could have caused serious damage to the victims' lives and bodies, and the damage that the victims actually suffered was of a serious nature. Despite his previous convictions not only for repeated crimes but also for similar crimes such as robbery causing an injury and rape at the scene of robbery, the accused committed the abovementioned crimes only less than three months after serving out his last prison term and being released. It can also be pointed out that the surviving family of the woman victim in the Matsudo Case and the victims in other cases have extremely strong feelings for the accused to be severely punished, and that the accused cannot be found to deeply reflect on what he did. The accused bears an extremely heavy criminal responsibility.

2. However, the exercise of the authority to impose a criminal penalty forcibly deprives the accused of his or her legally protected interest through the operation of state sovereignty. Unlike imprisonment with or without required labor, a fine and other criminal penalties, the death penalty is the ultimate punishment that is the severest of all criminal penalties and should be imposed only when it is truly an inevitable choice because it results in depriving the accused of his or her life forever. Therefore, as indicated in the 1983 Judgment and followed by this court's subsequent judgments, the death penalty should be applied with utmost care. In addition, the rule that the outcome of the trial should be fair to everyone is originally an essential requirement that is inherent in the very act of judging a person in a trial. When applying the death penalty, which is the ultimate punishment that is different from other criminal penalties as mentioned above, due consideration should be given to ensuring fairness. In the first place, since the circumstances to be taken into consideration when determining a sentence and the importance thereof differ from case to case, it is meaningless and inappropriate to compare the case in question with the precedent cases in detail. However, as mentioned above, from the perspective that the death penalty is the ultimate punishment and should be applied with utmost care and the perspective of ensuring fairness, it is absolutely necessary to examine in advance the factors to consider when choosing the death penalty and the degree of and grounds for the importance attached to each factor based on an accumulation of court decisions handed down in past cases through careful examination from the same perspectives, and in the process of deliberation, it is also absolutely necessary for the trial body to share the results of such examination as a common understanding and deliberate on the case with these results as the starting point. This equally applies to both a trial by a panel composed only of professional judges and a trial by a panel composed with the participation of saiban-in (lay judges).

During the process of deliberation, matters such as the nature of the crime, the motive, whether the crime was premeditated, the manner of committing the crime represented by the relentlessness and cruelty of the means of killing, the seriousness of the outcome represented by the number of victims killed, the surviving family's feelings of victimization, the impact of the case on society, and the perpetrator's age, criminal record, and circumstances after committing the crime, would be taken up as the abovementioned factors to consider that are extracted from an accumulation of past court decisions. In the course of reaching a conclusion on the case, it is necessary to make a comprehensive assessment in light of the degree of and grounds for the importance attached to each factor, and deepen the discussion as to whether or not the death penalty is found to be a truly inevitable choice, from the perspective that the death penalty should be applied with utmost care and the perspective of ensuring fairness.

On that basis, in order to gain acceptance for the imposition of the death penalty, the concrete and persuasive grounds on which the trial body determined the death penalty to be an inevitable choice must be presented, and hence, the court of second instance should review whether or not such determination made by the court of first instance is reasonable.

3. When viewed from such standpoint, the court of first instance indicated circumstances of the same effect as those mentioned in 1. above, and hence the findings by the court of first instance themselves cannot be assessed as being erroneous. Needless to say, the death penalty would be found to be an inevitable choice in some cases even when the number of victim killed is one. However, the following questions exist as to the grounds based on which the court of first instance determined the death penalty to be an inevitable choice.

In many cases of homicide on the occasion of robbery in which the number of victim killed was one, life imprisonment with required labor was chosen instead of the death penalty if the perpetrator had not premeditated from the beginning the act of taking the life of a person for the purpose of satisfying his or her love of gain or achieving other purposes. If the perpetrator had desired the death of the victim at an early stage and premeditated to kill, made preparation according to the premeditation and finally committed the killing, the case would pose a greater risk of violating the victim's life and demonstrate a greater disrespect for human life and thus the perpetrator's conduct would be more blameworthy, whereas, in the absence of such premeditation, it must be said that the blameworthiness from these aspects would be lessened. Consequently, attention should be paid to the fact that the accused cannot be found to have premediated the killing of the woman victim in the Matsudo Case. Furthermore, since the situation immediately before the killing and the motive of the killing cannot be specifically identified, it must be said that there is a limit to putting weight on the maliciousness of the manner of killing in the process of determining the sentence.

As other circumstances, the court of first instance pointed out the malicious and dangerous nature of the cases other than the Matsudo Case, the accused's criminal record and his antisocial personality tendency being outstanding and deeply rooted. However, in all these cases other than the Matsudo Case, the accused did not intend to take the life of a person when committing the crimes. In the process of determining a sentence, which should be carried out with a focus on the degree of responsibility commensurate to the criminal act committed, the general circumstances concerning the accused such as his or her antisocial personality tendency should necessarily be regarded as secondary factors to consider. Looking at the accused's criminal record, he did not go so far as to try to take the life of a person in the previous cases, and he was not sentenced to life imprisonment with required labor or imprisonment with required labor for a considerably long definite term comparable to a life sentence in any of these cases. In light of all these circumstances, no matter how much emphasis is placed on such factors as the malicious and dangerous nature of the cases other than the Matsudo Case, the accused's criminal record and his antisocial personality tendency, it is difficult to regard these factors as the grounds for justifying the choice of the death penalty.

As explained above, although in the Matsudo Case, the accused cannot be found to have premediated the killing of the woman victim and there is a limit to putting weight on the maliciousness of the manner of killing in the process of determining the sentence, the court of first instance sentenced him to the death penalty in the present case while placing emphasis on such factors as the malicious and dangerous nature of the cases other than the Matsudo Case, the accused's criminal record and his antisocial personality tendency, and hence, it cannot be said that the court of first instance presented any concrete or persuasive grounds for determining the death penalty to be an inevitable choice. The court of prior instance, which quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor, is considered to have determined that the abovementioned determination by the court of first instance is unreasonable and to have concluded that it was difficult in the present case to find any concrete or persuasive grounds for sentencing the accused to the death penalty. This court can also agree with such conclusion formed by the court of prior instance. Consequently, the sentence chosen by the court of prior instance cannot be found to be unjust to the extent that it would amount to an extreme injustice if it were not quashed.

Therefore, according to Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice CHIBA Katsumi.

The concurring opinion by CHIBA Katsumi is as follows.

In relation to the court opinion, I would like to give my comments as follows.

1. First of all, the following points can be indicated with regard to the objective of the saiban-in (lay judge) system and the role of the court of second instance.

In the present case, the death sentence handed down by the court of first instance through the proceedings with the participation of saiban-in was quashed by the court of second instance, which instead sentenced the accused to life imprisonment with required labor. This may face a criticism that, even though the saiban-in system is said to have been introduced with the objective of having the people's common sense reflected in criminal trials, the introduction of this system would become meaningless if the judgment made by the court of first instance with the participation of saiban-in is later modified by the court of second instance composed only of professional judges.

The saiban-in system is designed to enable the people to participate and have their common sense reflected in criminal trials, thereby improving the people's understanding of and enhancing their trust in the judicial process (see Article 1 of the Act on Criminal Trials with Participation of Saiban-in (hereinafter referred to as the "Saiban-in Act")). Although there are objections to including capital cases in the scope of cases subject to the saiban-in system, opinions and feelings toward the death penalty, which is the ultimate punishment, vary among the people, and by enabling the people to participate in deciding on serious cases in which the applicability of this punishment becomes a question, it would be possible to improve the people's understanding and consolidate the democratic foundation for criminal justice. In this respect, the people's participation in the judicial process will have a meaning and value in such serious cases.

In the process of establishing the Saiban-in Act, no amendment was made to the conventional appeal systems, in terms of either fact finding or sentencing. The form of the people's participation in criminal trials adopted in Japan is embodied as a system wherein a decision rendered with the participation of saiban-in may also be reviewed and quashed by the court of second instance composed only of professional judges. More specifically, the lawmakers chose a system wherein a decision rendered with the participation of saiban-in would not always be evaluated as being right and flawless but if it involves any errors in fact finding or inappropriate sentence, the appeal court composed only of professional judges is authorized to quash it. The saiban-in system differs in this respect from many jury systems adopted in the United States, which ensure the people's participation in criminal trials by rejecting appeals regarding fact finding.

Nevertheless, in light of the objective of the people's participation in criminal trials, the court of second instance should more thoroughly pursue its role as a court in charge of reviewing the appropriateness of the findings and determination made by the court of first instance. The criteria for review to be applied to quash the decision of the court of first instance on the grounds of errors in fact finding should be limited to violation of the rule of logic or empirical rule, while in the case of inappropriate sentencing, the sentence chosen by the court of first instance should not be easily modified only because the decision in which the people's common sense is reflected through the participation of saiban-in is inconsistent with the sense of professional judges.

The saiban-in system aims to realize criminal trials in which the people and legal professionals, through exchange of the former's viewpoints and the latter's expertise, can develop mutual understanding and stimulate each other, thereby making good use of their own merits (see 2010 (A) No. 1196, judgment of the Grand Bench of the Supreme Court of November 16, 2011, Keishu Vol. 65, No. 8, at 1285). I believe that by accumulating cases in which the people participate in the judicial process, criminal trials which will reflect the people's common sense and be meaningful from a long-term perspective will be realized in the future.

2. The next question is the choice of the death sentence, which has raised an issue in the present case. On this point, I consider that since the death penalty is the severest of all criminal penalties and should be imposed only when it is truly an inevitable choice, this punishment should be applied with utmost care and giving due consideration to the perspective of ensuring fairness.

The court opinion indicated that in cases in which the choice of the death penalty could become a question, utmost care and fairness are required for applying this punishment, and on this premise, it stated that it is absolutely necessary to examine the factors to consider when choosing the death penalty and the degree of and grounds for the importance attached to each factor based on an accumulation of court decisions handed down in past cases, and it is also absolutely necessary for the trial body to share the results of such examination as a common understanding and deliberate on the case with these results as the starting point. What is meant by this statement may be as follows. In light of the nature of homicide as a criminal act and the substance of the death penalty as punishment to be imposed therefor, attention should first be paid to the number of victims killed in the case in the process of determining the sentence to be given for the criminal act of homicide that deprives the victim of his or her life, which is the victim's legally protected interest that has overwhelming importance, and this is unquestionably an important factor to consider when choosing the death penalty (nevertheless, it should be noted that it is inappropriate to regard the number of victims as an absolute criterion for choosing the death penalty, and the final choice should be made by taking into consideration other factors as well). Furthermore, the purpose (motive) of violating a person's legally protected interest, i.e., his or her life, generally relates to the degree of blameworthiness of such an act, and the aspect as to whether or not the crime was premeditated is directly linked with the degree of risk of violating the victim's life. The manner of violation of said legally protected interest (e.g. relentlessness and cruelty) could be a factor that necessitates the choice of the ultimate punishment. These points have been indicated by past court decisions. In addition, the surviving family's feelings of victimization, the impact of the case on society, and the perpetrator's age, criminal record, and circumstances after committing the crime are also factors to be addressed. To what degree each factor should be considered to be important is closely related to extremely judicial determination and consideration concerning underlying elements of the criminal justice system, i.e. the characteristic of homicide as a criminal act and the substance of the death penalty as punishment therefor, and an answer to the question of to what degree each factor should be considered may necessarily be found from an accumulation of past court decisions created over a long period of time. What judges are required to do is something other than devising an equation while bearing in mind the sentencing trends or a sort of ratings in sentencing found from the precedent cases decided by judges, and drawing a conclusion by applying that equation to an actual case. Rather, judges are required to establish the results of examination on the degree of and grounds for the importance attached to each of these factors to consider, which have been thus found based on an accumulation of past court decisions, as a common understanding that gives the basis for determining a sentence to be handed down in an actual case, and to carry out deliberations with these results as the starting point. In this manner, the court opinion demands that the trial body as a whole carry out deliberations based on, as its common understanding, what could be described as the "essence of determination of a sentence" that is found from an accumulation of past court decisions in which the choice of the death penalty became a question, and it does not by any means state that the trial body should adhere to past court decisions.

This equally applies to both a trial by a panel composed with the participation of saiban-in (lay judges) and a trial by a panel composed only of professional judges.

Based on such common understanding, a trial body composed with the participation of saiban-in is to 1) examine the abovementioned factors to consider with a focus on the criminal facts, etc. as found in an actual case, 2) specifically assess why and to what degree the perpetrator is blameworthy by taking all these factors into consideration, and 3) thereby form a conclusion as to whether or not to choose the death penalty, and in this process, saiban-ins' views and common sense, that is, the so-called sound sense of citizens, are expected to be embodied.

3. Furthermore, I would like to comment on the following points.

As mentioned in the court opinion, in the cases of robbery causing injuries, rape at the scene of robbery and other crimes the accused committed against five women during a period of about two weeks before and after the Matsudo Case, the accused did not have the intent to kill, and even when these crimes are viewed by putting weight on their serious and malicious nature, this does not provide sufficient grounds for justifying the choice of the death penalty. After all, whether or not to choose the death penalty depends on the assessment on the Matsudo Case.

The important point of the Matsudo Case is that the "premeditation of the killing," which is a factor to consider when choosing the death penalty, cannot be found. Furthermore, why the accused, only in this case, had such a firm intent to kill the victim, whom he had had no acquaintance with, and committed the killing in a relentless manner, cannot be clarified unless the situation immediately before the killing or the motive of the killing is identified. This point is an important circumstantial factor that directly affects the degree of blameworthiness of the accused in the Matsudo Case, and I must say that it has not been made clear. Therefore, considering that utmost care and fairness are required for applying the death penalty as pointed out in the court opinion, I would say that the grounds based on which the court of first instance determined the death penalty to be an inevitable choice can hardly be judged to be reasonable in light of the abovementioned circumstances concerning the present case, even though the accused committed the crime in a relentless, cruel, and malicious manner.

Presiding Judge

Justice CHIBA Katsumi

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

(This translation is provisional and subject to revision.)